Smith v. Frame

Filing 21

SCREENING ORDER re 19 Second Amended Complaint signed by Judge J.P. Stadtmueller on 3/5/2018. Plaintiff PERMITTED to proceed on claim of violation of First Amendment right to freedom of association. Copies of Plaintiff's Second Amended Comp laint and this Order to be electronically SENT to Wisconsin DOJ for service on Defendant, who shall FILE a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT balance of filing fee in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Virgil M. Smith and Warden at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIRGIL M. SMITH,
Plaintiff,

v.

Case No. 17-CV-1745-JPS

B. FRAME,
Defendant.

ORDER

On February 28, 2018, Plaintiff submitted his Second Amended
Complaint. (Docket #19). As with his other complaints, it must now be
screened. 28 U.S.C. § 1915A(a). All of the standards announced in the initial
screening order (Docket #12 at 1-3) apply here. The relevant events occurred
in May 2017 while Plaintiff was incarcerated at Waupun Correctional
Institution (“Waupun”). (Docket #19 at 2). Plaintiff alleges that Defendant,
a social worker at Waupun, denied his request for an “emergency”
telephone call to Lashawnda Davis, his aunt. (Docket #19 at 2-3; Docket #191 at 1-2). Defendant denied his request because emergency calls are only
permissible for deaths in an inmate’s immediate family. (Docket #19 at 3;
Docket #19-1 at 12). Plaintiff maintains that this violated his First
Amendment right to free speech. (Docket #19 at 3).
Plaintiff states a First Amendment claim, but not for freedom of
speech. The more appropriate provision is the right to freedom of
association, specifically with family members. Harris v. Donahue, 175 F.
App’x 746, 747-48 (7th Cir. 2006). Prisoners maintain such a right, though
prison officials may curtail it, even severely, if such restrictions are founded
on legitimate penological needs. Id. Whether the denial of one emergency
phone call properly implicates this right, Easterling v. Thurmer, 880 F.3d 319,

323 (7th Cir. 2018) (“prison officials may violate the Constitution by
permanently or arbitrarily denying an inmate visits with family members”)
(emphasis added), and whether Defendant had a valid reason to deny
Plaintiff his phone call, Harris, 175 F. App’x at 748, are matters of proof
which must be addressed on summary judgment or at trial.
In sum, the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Defendant’s denial of an emergency
phone call to Plaintiff’s aunt Lashawnda Davis, in violation of Plaintiff’s
First Amendment right to freedom of association.
Accordingly,
IT IS ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this Court, copies of
Plaintiff’s Second Amended Complaint and this Order are being
electronically sent today to the Wisconsin Department of Justice for service
on Defendant;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendant shall file a responsive pleading to the Second Amended
Complaint within sixty (60) days of receiving electronic notice of this Order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the balance of the
filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’s trust account and forwarding payments to the Clerk
of Court each time the amount in the account exceeds $10 in accordance
with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If Plaintiff is transferred to

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another institution, county, state, or federal, the transferring institution
shall forward a copy of this Order along with Plaintiff’s remaining balance
to the receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined;
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, Plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. If the
plaintiff is no longer incarcerated at a Prisoner E-Filing institution, he will
be required to submit all correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
Plaintiff is further advised that failure to make a timely submission
may result in the dismissal of this action for failure to prosecute. In addition,
the parties must notify the Clerk of Court of any change of address. Failure
to do so could result in orders or other information not being timely
delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 5th day of March, 2018.
BY THE COURT:

_____________________________
J. P. Stadtmueller
U.S. District Judge

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